Lee Ting and Another v. Wei Sau Hung
Read the full judgment text of DCCJ 301/1976 on BabelCite. This District Court judgment.
1. This is an action for slander brought by a husband (1st Plaintiff) and wife (2nd Plaintiff) against a woman who is a fellow villager of the Plaintiffs. No defence has been filed but application for summary judgment under Rule 22 of the District Court Civil Procedure (General) Rules (hereinafter referred to as the "General Rules") was refused by the Deputy Registrar on the grounds that the claim is outside the ambit of this Rule. This matter came before me for formal proof. The Defendant was a
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DCCJ000301/1976 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT FANLING CIVIL JURISDICTION ACTION NO. 301 OF 1976 -----------------
----------------- Coram: N.B. Hooper, D.J. Date of Judgment: 30th March, 1977. ----------------- JUDGMENT ----------------- 1. This is an action for slander brought by a husband (1st Plaintiff) and wife (2nd Plaintiff) against a woman who is a fellow villager of the Plaintiffs. No defence has been filed but application for summary judgment under Rule 22 of the District Court Civil Procedure (General) Rules (hereinafter referred to as the "General Rules") was refused by the Deputy Registrar on the grounds that the claim is outside the ambit of this Rule. This matter came before me for formal proof. The Defendant was absent on the day of the hearing and Mr. Chan for the Plaintiffs moved for judgment to be entered for the Plaintiffs under Order 19 rule 3 of the Rules of the Supreme Court in respect of damages to be assessed and for an injunction order under Order 19 rule 7. As an alternative he moved also that judgment be entered on the admissions contained or rather deemed to arise on the allegations contained in the Plaintiffs Particulars of Claim by reason of the Defendant's failure to traverse the Plaintiffs' allegation. 2. In support of his motion for judgment under Order 19 he argued that despite the presence of Rule 22 in the "General Rules" Order 19 rule 3 and rule 7 of the Rules of Supreme Court also applied to proceedings in the District Court by virtue of Rule 9 of the "General Rules". He distinguished the case of CHOW Cho-poon v. MA Shiu-poon(1) in which in an analogous situation it was held that Order 27 rule 11 of the English Rules was not applicable to Hong Kong by virtue of Order 1 rule 4 of the Code of Civil Procedure which was then applicable in Hong Kong. This rule in the Hong Kong Code (Order 1 rule 4) provided that in all cases with respect to which no provision was made by the Code, the English Rules should be deemed to be in force in the colony, provided that where any subject was dealt with wholly or partly by the Code, the English Rules would be deemed not to be in force in the colony. The Court held in that case that since the Hong Kong Code dealt with the matter of judgment in default of defence in the specific instance of a claim for a debt or liquidated demand, either wholly or partly according to one's point of view, the English Rules did not apply in Hong Kong. Mr. Chan submitted in effect that Rule 9 of the "General Rules" is not so restrictive and leaves the way open for the application of Order 19 of the Rules of Supreme Court to proceedings in the District Court. I agree with him. This view is further reinforced by the schedule to the "General Rules" which specifically sets out which provisions of the Rules of Supreme Court do not apply in the District Court. Order 19 is not one of them. I am therefore of the view that it is open to a plaintiff to invoke Order 19 rule 3 and rule 7 Rules of Supreme Court in the District Court. 3. In support of his alternative motion that judgment be entered on the admitted facts under Order 27 rule 3 of the Rules of Supreme Court Mr. Chan referred to the White Book 1976 at page 448. The note there clearly supports his submission that this rule covers admissions which are deemed to arise by reason of the defendant's failure to traverse the Plaintiffs' allegations. This rule is also not specifically excluded by the schedule to the "General Rules". 4. The mechanism is therefore provided by the procedure for judgment to be entered on the pleadings as they stand. 5. The Plaintiffs' Particulars of Claim are as follows:-
Particulars
6. As a general rule slander is only actionable on proof of special damage. There are four notable exceptions to this rule, but none of these appears to apply to the 1st Plaintiff. An exception to the general rule would appear to exist in the case of the 2nd Plaintiff under section 21 of the Defamation Ordinance Cap. 21 (taken from the Slander of Women Act 1881). Whilst a husband and wife are entitled to join as co-plaintiffs in an action of this sort (Order 14 rule 4(1) Rules of Supreme Court) nevertheless it would appear that the husband cannot sue without proof of special damage, though the wife can (see Gatley on Libel and Slander 7th Edition para. 870). This is the Common Law Rule and it has not been clearly overruled by the statute. (See also Street on Torts 6th Edition at page 288). The position would therefore seem to be that the 1st Plaintiff could only succeed on proof of special damage while the 2nd Plaintiff could sue both for special damage and general damages. Special damage should, however, be specifically pleaded. (Rustell v. Macquister(2)) The rule therefore that applies to the 1st Plaintiff is that he can only maintain an action for slander on his suffering special damage which is the natural and probable result of the publications. 7. In this case neither Plaintiff has pleaded special damage but each has only claimed general damages. In the circumstances judgment has been entered for the 2nd Plaintiff only on the above Particulars of Claim and that judgment is for general damages. So far as the 1st Plaintiff is concerned Mr. Chan has requested that the matter be left open as he may receive instructions to apply to amend the Particulars of Claim. He has asked that the 2nd Plaintiff's damages be assessed on the facts as revealed in the pleadings and on the evidence of one witness Mr. TSANG Sang-fat, the village elder referred to in para. 5 of the Particulars of Claim. 8. It will be seen that the allegations in paragraphs 3, 5 and 7 really all relate to one particular slanderous allegation by the Defendant insofar as the 2nd Plaintiff is concerned, which has been repeated on each and all the occasions referred to in these three paragrphs, namely the allegation that the 2nd Plaintiff had committed adultery with one CHAN Chung and was therefore unfaithful to her husband. I am of the view that for the purpose of assessing damages they should be taken to be but one slanderous allegation which has been repeated and that this repetition should be regarded as a factor of aggravation of damages rather than that each should be regarded as a separate allegation. 9. Paragraph 11 of the Particulars of Claim sets out the way in which the 2nd Plaintiff has been injured by the slanderous words. She has had to put up with "unwarranted strictures, remarks or jeers from her friends, neighbours and relatives". She has been "shunted from social activities" in the villages in Sai Kung area. The relationship between the 2nd Plaintiff and her husband deteriorated. The 2nd Plaintiff's family relationship deteriorated and the 2nd Plaintiff suffered "great emotional distress and mental agony." 10. The evidence of the village elder Mr. TSANG Sang-fat also bore out the 2nd Plaintiff's claim. He first of all testified as to the general attitude of the villagers to the sort of conduct attributed to the 2nd Plaintiff by the Defendant and when asked if he noticed any difference in the relationship between this couple and the whole village he testified that the villagers adopted a rather unfriendly attitude towards them, and in fact ignored the 2nd Plaintiff. He further testified that as village elder he had requested the Defendant to apologise to the couple but that the Defendant refused to do so. Such an apology should be made at a banquet paid for by the Defendant to inform the villagers that the Defendant had made a mistake. This was not done. Mr. Tsang testified that as a year has passed since the slander was published "such talks just simply faded away and it hasn't done much to influence the villagers now towards Mrs. Lee" (the 2nd Plaintiff). 11. The position would seem to be that at the beginning Mrs. Lee suffered a good deal in the ways set out in the Particulars of Claim, but that latterly the suffering has to a very large extent subsided. The fact remains however that she has not been cleared of this slanderous allegation and the defendant's attitude in refusing to apologise has aggravated the damages, as has her repetition of these words. There is clear malice to be inferred from the terms of these words and from the widespread repetition in the Sai Kung area. 12. In awarding "aggravated damages" it has been said that "the natural indignation of the court at the injury inflicted on the Plaintiff is a perfectly legitimate motive for making a generous rather than a more moderate award to provide an adequate solatium ............ that is because the injury to the Plaintiff is actually greater, and, as a result of the conduct exciting the indignation, demands a more generous solatium" (per Lord Hailsham L.C. in Broome v. Cassell(3). 13. Aggravated damages has been distinguished from exemplary or punitive damages, the former being compensatory in nature whereas the latter being punitive. The difference is stated simply by Lord Reid in the above case (at page 1089):
14. The present case is not a case for exemplary damages because it does not fall within the categories laid down in Rookes v. Barnard(4) which decision, though under attack, was applied by the House of Lords in Broome case (supra). 15. I must therefore assess a sum which in my opinion will compensate the 2nd Plaintiff for her hurt feeling and the indignation she suffered. 16. Mr. Chan has referred to a number of Hong Kong authorities with a view to assisting the court in this exercise but they all relate to libel actions where subject to one exception the libellous matter was published in newspapers, and where the publication was therefore very much more widespread. The cases are:-
17. As an exception in 3 above the libel was contained in a letter and related to a rival firm whose business was likely to be seriously effected. The action was brought under the Summary Jurisdiction of the Supreme Court (i.e. before the District Court was established) and the maximum award of $5,000 in damages was made. 18. In case 1 a case in which an incestuous relationship was alleged Mr. Justice Huggins held that a factor for determining the question of damages was the position occupied in the social scale by the person defamed and Mr. Chan has drawn my attention to this principle. In case 2 the plaintiff was a very well-known former Prime Minister of China who was living in the United States of Americal while the libel was published in Hong Kong. In case 4 the allegation was very serious (that the plaintiff kept a disprderly house) and the circulation of the newspaper was large. In case 5 an article in the newspaper falsely alleged that a respectible married woman operated a dance hall riddled with vice which was raided by police. In case 6 the libel was in respect of drunkenness and what allegedly resulted from the drunkenness and the article which was published in a newspaper was very offensive. 19. It is difficult from these cases to obtain any guide in respect of a slander such as the present where the slander was limited to the area of Sai Kung in which the Plaintiffs live and related a woman in the 2nd plaintiff's position in the social scale. 20. In the case of Russo v. Cole(11) a woman plaintiff in a similar action in respect of a slander which imputed unchastity or adultery to her was awarded $100 by the jury. The learned judge Davies L.J. commented at page 823:
The impression was that the judge considered the award on the low side, but the report does not give many details as it was primarily concerned with the question of costs. 21. Taking all things into account and in particular the nature of the slander, the repetition, the obvious malice, the limited area of publication, the attitude of the defendant, the humble background of the parties, the general attitude of people in the area of the parties' home, which was rather strict and would therefore make the effects more deeply felt and finally the fact that although lasting for some time the effects have faded quite considerably I consider that $3,000 would be a fair solatium. I therefore assess the damages suffered by 2nd Plaintiff at $3,000. 22. So far as the claim for an injunction is concerned, it does appear from para. 1379 in Gatley that in cases where slander is actionable perse, the court may grant an injunction restraining any further or future publications of the words complained of if the court is satisfied that the words are injurious to the Plaintiffs and there is reason to apprehend further publication by the Defendant. 23. It would seem from the evidence of the village elder that since the "talks faded" as a result of the passing of time, the likelihood of further publication is fairly remote. I do not think I should make an order granting an injunction. In any event I think the compensatory order when served on the defendant will have a salutory effect in itself should the defendant be contemplating further repetition after all this time. 24. So far as costs are concerned I award costs to the 2nd Plaintiff to be taxed on the lower scale with a certificate for counsel. I also certify under section 21 of the Defamation Ordinance Cap. 21 that there was reasonable ground for the 2nd Plaintiff to bring this action.
Representation: (1) (1962) H.K.L.R. 120 (2) (1807) 1 Camp. 49: English & Empire Digest Vol. 32 para. 2218,2219. (3) (1972) A.C. 1027 at p. 1073 (4) (1964) A.C. at page 1228 (5) (1963) H.K.L.R. 692 (6) (1959) H.K.L.R. 65 (7) (1952) H.K.L.R. 332 (8) (1965) H.K.L.R. 7 (9) (1959) H.K.L.R. 1 (10) (1960) H.K.L.R. 1 (11) (1965) 3 All E.R. O B D |